Summary: Mr B complained that the independent appeal panel failed to properly consider his appeal against the refusal of a place for his son at his preferred school. The Ombudsman finds there was fault in the way the appeal panel considered Mr B’s appeal. To remedy the injustice caused, the Council has agreed to offer Mr B a new appeal.

The complaint

1. Mr B complains that the appeal panel failed to properly consider his appeal against the refusal of a place for his son at his preferred school.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We cannot question whether an independent school admissions appeals panel’s decision is right or wrong simply because the complainant disagrees with it. We must consider if there was fault in the way the decision was reached. If we find fault, which calls into question the panel’s decision, we may ask for a new appeal hearing. (Local Government Act 1974, section 34(3), as amended)
3. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

4. I have considered:
• Mr B’s complaint;
• all the information presented to the appeal panel, the notes taken by the clerk during the appeal hearing and the panel’s decision letter following the appeal; and
• the current School Admission Appeals Code.
5. I have written to Mr B and the Council with my draft decision and given them an opportunity to comment.

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What I found

Legal and administrative background

6. Independent appeal panels must follow the law when considering an appeal. The panel must consider whether:
• the admission arrangements comply with the law; and
• the admission arrangements were properly applied to the case.
7. The panel must then consider whether admitting another child would prejudice the education of others.
8. If the panel finds there would be prejudice, it must then consider the appellant’s arguments. If the panel decides the appellant’s case outweighs the prejudice to the school, it must uphold the appeal.
9. The Ombudsman does not question the merits of decisions properly taken. The panel is entitled to come to its own judgement about the evidence it hears.

The application

10. Mr B made an on-time application for a place for his son, C, in Year Seven. School X was his second preference. C was offered a place at his third preference school, School Y. Mr B appealed.

The appeal

11. The Council’s written case stated that the published admission number (PAN) is 130. The Council had offered places up to the PAN. It argued that any additional child would prejudice the provision of efficient education and the efficient use of resources in the school.
12. The Council explained that: the school had 11 looked after children, which is a significant number for the size of the school, and over 200 children who are Pupil Premium. Both of these factors create the need for additional pastoral support within the school; many of the classrooms were small; the school has narrow corridors and movement around the school is challenging; specialist work rooms for subjects such as ICT/computing, science, art and music are designed for a maximum of 25 students but these classes sometimes have 28-30 students and there is no capacity to increase this further; and the school hall is regularly used for teaching as well as for daily assemblies, a dining area and rehearsals. The Council argued that exceedingly admission number would place additional pressures on staff and resources particularly in specialist and practical areas.
13. At the first stage of the appeal hearing the Council presented its case. The appeal panel then heard Mr B’s case. He explained he works night shifts. Although his wife does not work, they have younger children and it would be difficult to get all the children to school on time if C attended School Y which was some distance from the younger children’s primary school. If C were offered a place at School X this would make things much easier as it was near the primary school.
14. The clerk’s notes of the decision-making show the panel considered the Council’s case was made out and that the reasons submitted by Mr B were not sufficient to override the council’s case.
15. The school admissions appeals code states, “The clerk must ensure an accurate record is taken of the points raised at the hearing, including the proceedings, attendance, voting and reasons for decisions”.
16. The clerk’s notes do not comply with the Code. Firstly, they do not record the names of the panel members. Secondly, they do not show consideration of whether the admission arrangements comply with the law all that they were properly applied in this case.
17. Thirdly, the notes do not record the panel’s deliberations all the reasons for its decisions. The recording of the decision simply states “authority/governors case made out: yes/no”. The clerk has circled ‘yes’ but has given no reasons for this. There are no notes of why the panel considered the case for prejudice was proven.
18. The same applies to the decision on Mr B’s case. The clerk has circled “not allowed” and has selected the option “overall parental reasons not sufficient to override authority/governors case” but has not given any reasons for the panel’s decision.
19. Failure to provide an accurate record of the panel’s deliberations and decision-making is fault and caused into question the panel’s decision.

The decision letter

20. The Code says the decision letter must give clear reasons for the panel’s decision, including how and why issues of fact or law were decided by the panel during the hearing.
21. The clerk’s decision letter to Mr B explained that his appeal was dismissed. It stated the grounds for the panel’s decision were that to allow C a place at School X would prejudice the provision of efficient education or the efficient use of the school’s resources and that the degree of prejudice caused outweighed the reasons Mr B put forward.
22. The letter stated that the appeal panel found the admission arrangements complied with the law and were correctly applied in this case. It also stated that the panel was satisfied that to admit another child into year 7 would prejudice the provision of efficient education or the efficient use of resources at the school.
23. However, it went on to state “Although the Appeal Panel had sympathy for your case, it found there were no factors that made the decision to refuse a place one that no reasonable authority would have made in the circumstances. Accordingly, as none of the permitted grounds for allowing the appeal were established, the Appeal Panel felt it had no alternative but to dismiss your Appeal”.
24. This is a reference to infant class size appeals which do not apply to secondary school appeals. In an infant class size appeal the panel must consider whether the decision to refuse a place was one which a reasonable authority would have made in the circumstances.
25. For all other appeals, the panel must consider whether admitting another child would prejudice the education of others. If the panel finds there would be prejudice, it must then consider the appellant’s arguments to decide whether their case outweighs the prejudice to the school.
26. The reference to the ‘reasonableness test’ in the clerk’s letter suggests the panel may have considered the appeal on the wrong basis. Their role was to decide if Mr B’s case outweighed the prejudice to the school, not whether the decision to refuse a place was one that no reasonable authority would have made.
27. The faults identified above call into question the panel’s decision. This causes Mr B a significant injustice.

Agreed action

28. The Council has agreed that, within one month of this decision, it will offer Mr B a fresh appeal for his son for School X with a different panel and a new clerk.
29. Clerks are reminded of the importance of accurately recording the reasons for the panel’s decision and its deliberations. The Council has agreed that, within three months of this decision, it will review the training needs of its clerks and panel members in this regard.

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Final decision

30. There was fault in the appeal leading to injustice.
31. As the Council has agreed to implement the recommended remedy, I have completed my investigation on the basis that I am satisfied with its actions.

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Investigator's decision on behalf of the Ombudsman